High Court · 2025

Pet it ioner has challenged order issued by Secret ary, Secondary Educat ion, Governm ent of Ut t arakhand, on 19.09.2023, by which ban on appoint m ent against t eaching and non- t eaching posit ions in Governm ent Aided Educat ional I nst it ut ions im posed, t ill furt her orders. The reason im posing ban, as culled out from t he order is t hat in t he past , com plaint s were received t hat select ion and appoint m ent s in Aided Schools are not fair and are m ade for considerat ions ot her t han m erit .

4. Pet it ioner has challenged t he ban im posed vide Governm ent Order dat ed 19.09.2023 m ainly on 2 t he ground t hat sim ilar ban, earlier im posed by Direct or General, School Educat ion on 10.11.2022, was set aside by Coordinat e Bench vide j udgm ent dat ed

16.08.2023 passed in Writ Pet it ion ( M/ S) No. 3231 of

2022. Paragraph nos. 9 & 10 of t he j udgm ent dat ed

16.08.2023, are ext ract ed below: - “ 9. A bare reading of Sect ion 36 of t he Act , m ake it abundant ly clear t hat at various st ages, Dist rict Educat ion Officer is involved. I n fact , prior t o issuing t he advert isem ent and even aft er applicat ions are received in response t o t he advert isem ent t he Dist rict Educat ion Officer is involved. The qualit y m arks are t o be allot t ed by t he Dist rict Educat ion Officer.

10. This Court is not required t o adj udicat e on any com plaint t hat were received, wit h regard t o any part icular appoint m ent in any aided school. I f t here were com plaint s, t he com pet ent aut horit y could have exam ined t hem and t ake required act ion in a par t icular m at t er. But , put t ing a com plet e ban, wit hout any st at ut ory aut horit y m ay perhaps not been upheld. There is a procedure prescribed under t he Act . The provisions of t he Act m ay not be defeat ed by any such com m unicat ions. I t m ay definit ely adversely effect t he educat ion in such im pugned com m unicat ion is wit hout any st at ut ory force and deserves t o be set aside.” schools. Therefore, t he

5. Learned counsel for t he pet it ioners subm it t hat once sim ilar ban im posed by Direct or General, School Educat ion, for ident ical reasons was set aside by Coordinat e Bench of t his Court , t hen St at e Governm ent cannot im pose fresh ban on appoint m ent s in Aided Schools, on t hose very grounds. I t is cont ended t hat t he im pugned order dat ed 19.09.2023 is issued for ext raneous reasons in colourable exercise of power and St at e Governm ent does not have t he power t o im pose such ban on recruit m ent s. 3

6. Sect ion 36 of Ut t arakhand School Educat ion Act , 2006 lays down t he procedure for select ion of t eachers and heads of t he inst it ut ions; while, Sect ion 37 of t he Act provides for const it ut ion of select ion com m it t ee for appoint m ent . Sub- sect ion ( 3) of Sect ion 37 provides t he com posit ion of Select ion Com m it t ee for appoint m ent clerical/ m inist erial st aff educat ional inst it ut ion; while, sub- sect ion ( 4) t he com posit ion of Select ion Com m it t ee respect of Group- D em ployees. Regulat ion 10 of Chapt er- I I t he Regulat ions fram ed Ut t arakhand School Educat ion Act , 2006 lays down t he procedure, which has t o be followed, while m aking select ion for appoint m ent t o various t eaching post s; while, Regulat ion 18 lays down t he procedure of select ion for appoint m ent t o non- t eaching post s. Regulat ion 10 ( ka) provides t hat aft er det erm ining t he vacancies, which are t o be filled by direct recruit m ent , Com m it t ee of Managem ent shall approach t he Dist rict Educat ion Officer, and aft er get t ing perm ission t o advert ise vacancies, shall init iat e t he select ion process.

7. Learned counsel for t he pet it ioners subm it t hat St at e Governm ent and also t he aut horit ies of Educat ion Depart m ent have been im posing ban on select ion for appoint m ent t o t eaching and non- t eaching post s in Governm ent Aided I nst it ut ions during recent past , due t o which, m aj orit y of t he sanct ioned post s of t eacher and ot her em ployees, are lying vacant , which is adversely affect ing academ ic at m osphere t he schools. Counsel for t he pet it ioners point out t hat due t o ban im posed earlier by Direct or General and now by 4 t he St at e Governm ent , no appoint m ent could be m ade in any inst it ut ion for last m ore t han five years and due t o deat h/ ret irem ent , t he sit uat ion has becom e grim and st udent s are left wit h very t eachers. Learned counsels subm it t hat Governm ent Aided I nst it ut ions are t he only hope for st udent s belonging t o financially week st udent s, especially in rem ot e villages where t here is no ot her school available, however, due t o short age of t eachers, it has now becom e very difficult t o run t hese schools.

8. Learned counsels for pet it ioners have drawn at t ent ion of t his Court t o t he provisions cont ained in t he Right of Children t o Free and Com pulsory Educat ion Act , 2009 ( hereinaft er referred t o as ‘RTE Act ’) , which confers st at ut ory right t o every child of t he age of six t o fourt een years t o get free and com pulsory educat ion in a neighbourhood school. Sect ion 3 ( 2) of t he said Act provides t hat no child shall be liable t o pay any fee or charges or expenses which m ay prevent him from pursuing and com plet ing t he elem ent ary educat ion.

9. Learned counsel for t he pet it ioners subm it t hat Sect ion 6 of t he RTE Act cast s a dut y upon t he appropriat e Governm ent and t he local aut horit y t o est ablish, wit hin such area or lim it s of neighbourhood as m ay be prescribed, a school wit hin t hree years from t he com m encem ent of t he Act . At t ent ion of t his Court is also drawn t o Sect ions 8 & 9 of t he aforesaid Act , which lay down t he dut ies of appropriat e Governm ent and local aut horit y. 5

10. Learned counsel for t he pet it ioners placed heavy reliance on Sect ion 25 of t he RTE Act , which provides t hat wit hin t hree years from t he dat e of com m encem ent of t he RTE Act , it shall be dut y of t he appropriat e Governm ent / local aut horit y t hat pupil- t eacher rat io, as specified in t he Schedule is m aint ained in each school. I t is cont ended t hat inst ead of m aking effort s t o achieve t he t eacher- pupil rat io, as indicat ed in t he Schedule t o RTE Act , St at e Governm ent is creat ing hurdles in m aking appoint m ent s on t he available vacancies on t he post of t eacher, which is cont rary t o t he spirit of t he RTE Act . I t is cont ended t hat t he availabilit y of t eachers in aided schools is woefully short of t he prescribed norm s, but inst ead of helping t he Managem ent t o fill up t he vacancies; St at e aut horit ies are prevent ing t he Managem ent m aking appoint m ent s, which are cont rary t o t he provisions of RTE Act . Sect ion 25 of t he RTE Act is ext ract ed below: - “ 2 5 . Pu p i l - Te a ch e r Ra t i o .- ( 1) Wit hin t hree years from t he dat e of com m encem ent of t his Act , t he appropriat e Governm ent and t he local aut horit y shall ensure t hat t he Pupil- Teacher Rat io, as specified in t he Schedule, is m aint ained in each school. ( 2) For t he purpose of m aint aining t he Pupil- Teacher Rat io under sub- sect ion ( 1) , no t eacher post ed in a school shall be m ade t o serve in any ot her school or office or deployed for any non- educat ional purpose, ot her t han t hose specified in sect ion 27.”

11. Learned St at e Counsel, per cont ra, subm it s t hat t here is a general com plaint t hat appoint m ent against t eaching and non- t eaching post s in privat ely m anaged Governm ent Aided Educat ional I nst it ut ions are t aint ed by favourat ism and nepot ism ; select ions are 6 m ade for considerat ions ot her t han m erit and near and dear ones of t he office bearers of t he Managem ent succeed in get t ing appoint m ent t o t he disadvant age of m erit orious candidat es. He subm it s t hat t he t eachers and ot her em ployees, serving in privat ely m anaged Governm ent Aided I nst it ut ions are paid salary and ot her benefit s from public exchequer, as are payable t o Governm ent t eachers, t herefore, according t o him , public int erest dem ands t hat appoint m ent s Governm ent Aided I nst it ut ions should be fair and t ransparent and ext raneous considerat ions should not have any role t o play in t he m at t er of appoint m ent against available vacancies in Governm ent Aided I nst it ut ions. He subm it s t hat due t o favorit ism adopt ed by Managem ent while m aking select ion, t he qualit y of t eaching in such schools has gone down subst ant ially, which has t o det eriorat ion t he st andard of educat ion. He furt her subm it s t hat since t he St at e Governm ent is bearing t he burden of providing salary and ret iral benefit s t o t he t eaching and non- t eaching em ployees serving in Governm ent Aided I nst it ut ions, t herefore, public int erest dem ands t hat appoint m ent s are m ade in t hese inst it ut ions purely on m erit . Learned St at e Counsel t hus subm it s t hat t he decision t o im pose ban on appoint m ent s was t aken at t he highest level t o check t he m alpract ices adopt ed by Managem ent while m aking appoint m ent t o t eaching and non- t eaching posit ions in Governm ent Aided I nst it ut ions.

12. Learned counsel for t he pet it ioners, however, subm it t hat t he allegat ion t hat Managem ent m isuses it s power of appoint m ent is incorrect . They cont end t hat 7 t he select ion process is cont rolled by officers of Educat ion Depart m ent , inasm uch as, t he advert isem ent invit ing applicat ions has t o be issued aft er seeking perm ission t he com pet ent aut horit y t he Educat ion Depart m ent ; t he form s in which applicat ions are t o be subm it t ed by candidat es are sold from t he office of Dist rict Educat ion Officer and t he applicat ion has t o be subm it t ed wit h requisit e fee in t he office of Dist rict Educat ion Officer and Managem ent has no role t o play in t hese m at t ers. They furt her subm it t hat as per law, Select ion Com m it t ee has t o be const it ut ed for assessing suit abilit y of a candidat e for a part icular post and out of five m em bers in t he said Com m it t ee, t hree are nom inat ed by t he aut horit ies of Educat ion Depart m ent . I t is furt her point ed out t hat t he process of short- list ing is also done by t he office of Dist rict Educat ion Officer and list of t op seven short list ed candidat es, based on t heir scholast ic perform ance, is also prepared by t he office of Dist rict Educat ion Officer. I t is furt her point ed out t hat t he Managem ent has t o appoint a candidat e recom m ended by t he Select ion Com m it t ee, t hat t oo aft er obt aining prior approval of t he Com pet ent Aut horit y in Educat ion Depart m ent .

13. Art icle 21A of t he Const it ut ion of I ndia reads as under: - “ The St at e shall provide free and com pulsory educat ion t o all children of t he age of six t o fourt een years in such m anner as t he St at e m ay, by law, det erm ine.”

14. Thus, every child bet ween t he age of six t o fourt een years has a fundam ent al right t o receive free 8 and com pulsory educat ion. Thus, it is im perat ive t hat every school m ust have qualified t eachers and t he basic infrast ruct ure. The RTE Act in t he Schedule has laid down t he norm s and st andards, which every school has t o follow. The t eacher- pupil rat io is also prescribed by RTE Act .

15. This Court finds subst ance in t he subm ission m ade by learned counsel for t he pet it ioners t hat due t o t he ban im posed by t he St at e Governm ent , it will be difficult for t he Managem ent of t he schools t o m aint ain t he t eacher- pupil rat io, as envisaged in RTE Act .

16. As per Sect ion 36 of t he Ut t arakhand School Educat ion Act , 2006, Com m it t ee of Managem ent is conferred t he power t o appoint t eacher/ principal in an educat ional inst it ut ion. Though such power is subj ect t o regulat ory cont rol of t he Direct or, School Educat ion and ot her aut horit ies of t he Educat ion Depart m ent , however, St at e Governm ent does not com e int o pict ure at all. Thus, t his Court finds subst ance t he subm ission m ade on behalf of pet it ioners t hat St at e Governm ent cannot rest rain a st at ut ory aut horit y from discharging it s st at ut ory funct ions. I n ot her words, t he St at e Governm ent has act ed beyond it s aut horit y by inst ruct ing t he Direct or, School Educat ion and Direct or General, School Educat ion not t o perm it any recruit m ent process for appoint m ent in Governm ent Aided I nst it ut ions.

17. Having heard learned counsel for t he part ies and upon perusal of t he record, t his Court subst ance in t he subm ission m ade by learned counsels 9 for t he pet it ioners t hat t he int erference m ade by t he Secret ary, School Educat ion wit h t he process of select ion is wholly unj ust . The provisions Ut t arakhand School Educat ion Act are applicable t o recognized inst it ut ion, including Governm ent Aided I nst it ut ions. No educat ional inst it ut ion can run wit hout adequat e num ber of t eachers. Right t o Educat ion has now been declared t o be a fundam ent al right and Parliam ent has enact ed t he Right of Children t o Free and Com pulsory Educat ion Act , 2009. The ban im posed by t he St at e Governm ent is not only in t he t eet h of provisions of RTE Act , 2009, but it am ount s t o int erference in t he right of t he children t o get qualit y educat ion.

18. Even ot herwise also, t he earlier ban im posed by Direct or General, School Educat ion was set aside by Coordinat e Bench, t herefore, t his Court finds subst ance in t he subm ission m ade on behalf of t he pet it ioners t hat t he subsequent ban im posed by Secret ary, School Educat ion is in colourable exercise of power. What cannot be done direct ly cannot be done indirect ly. The earlier ban was im posed by t he Direct or General and t his t im e ban has been im posed by t he Secret ary ( Educat ion) . Effect of t he ban im posed by bot h t he aut horit ies is t he sam e. Therefore, t he reasons given by Coordinat e Bench for set t ing aside t he ban im posed by Direct or General are st ill valid.

19. I n such view of t he m at t er, t he ban im posed by Secret ary, Secondary Educat ion, Governm ent of Ut t arakhand vide order dat ed 19.09.2023 is liable t o be 10 set aside and is hereby set aside. However, it shall be open t o t he com pet ent aut hority t o device ways and m eans and t o im plem ent t hem , by issuing necessary inst ruct ions t o subordinat e officers of t he Educat ion Depart m ent , for plugging t he loopholes in t he syst em for ensuring t hat select ion for appoint m ent in aided schools is m ade purely on m erit and ot her considerat ions are com plet ely elim inat ed in t he process of select ion. The applicat ions, if m ade, by t he pet it ioners seeking perm ission t o advert ise t he vacancies, shall be dealt wit h by t he aut horit ies as per law, and necessary order shall be passed wit hin four weeks from t he dat e of present at ion of cert ified copy of t his order before t hem .

20. Wit h t he aforesaid observat ions, t he writ pet it ions st and disposed of. ( M a n o j K u m a r Ti w a r i , J.) Dt : 03.09.2025 Navin NAVEEN CHANDRA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3be23325146e76a0642bdf4943fb9046f487df0 06da82a131bb4e4403d3c0a15, postalCode=263001, st=UTTARAKHAND, serialNumber=18167EEFB5CA8CFFD421A103819DA87 5643AF56D653D095C6ED9A86DAAB21CE5, cn=NAVEEN CHANDRA 11